Issue: June 2015
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Gastric Bypass, Sleeve Gastrectomy, Lap Banding and More: Risks of Patient Injury and Provider Malpractice in Weight-Loss Surgery

Introduction

Liability Risks for Bariatric Surgery

Weight-loss surgery, also known as bariatric surgery, includes procedures such as gastric bypass surgery, gastric sleeve surgery, and lap band surgery. These procedures can produce many benefits for patients, but they also carry a high level of risk.

 

A variety of complications are associated with these procedures. Complications can result in serious health conditions or, in extreme cases, death.

 

Litigation may occur even when the care provided by physicians and other medical providers satisfies high standards. When providers deviate from the standard of care and provide substandard treatment to patients, litigation frequently results. Damage awards in lawsuits involving injuries resulting from weight-loss surgery can be high.

 

Attorneys, physicians, hospitals, insurers, employers, and other potential parties to the litigation should be aware of the types of lawsuits and liability issues that can arise in connection with weight-loss surgery.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed to establish medical malpractice or negligence related to weight-loss surgery? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for an injury resulting from weight-loss surgery? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or there was no coverage for the physician’s negligence? And, what is a potential strategy for the insurer to employ? 

Employers:

Can an employer be liable for the costs of an employee’s weight-loss surgery? And, what is a potential strategy for the employer to use?


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a provider’s liability for malpractice or negligence involving bariatric surgery.

Physicians:

Presented is a checklist of items a physician must consider when defending against claims of malpractice or negligence involving bariatric surgery. 

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of injury from bariatric surgery.

Employers:

Use this checklist to determine if the employee’s need for bariatric surgery is medically necessary to treat a “work related” injury.

Expert Analysis

How Does the Failure to Diagnose and Treat Complications of Bariatric Surgery Lead to a Malpractice Action?

Peter A. Schmit, JD

Do Stigma and Bias Affect Access to Medical Treatments for Obesity? 

Antonia Namnath

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.   


Reasons To Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial.


Reasons To Go To Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving bariatric surgery injury?



Medical Examples

Weight-Loss Surgery

This section provides detailed medical information on obesity and weight-loss treatments, the types of surgery available, the selection of bariatric surgery candidates, and the complications and risks of weight-loss surgery. Also discussed is the patient’s ability to work.  



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on weight loss surgery.  


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Gastric Bypass, Sleeve Gastrectomy, Lap Banding and More: Risks of Patient Injury and Provider Malpractice in Weight-Loss Surgery

Table of Contents
Introduction

Expert Analysis
   Peter A. Schmit, JD
   Antonia Namnath

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons To Reach Settlement

Reasons To Go To Trial

Jury Awards and Settlements

Weight-Loss Surgery

Law and Medicine Resources